Contracts Relating to Wills Flashcards
what are the most common types of contracts?
1) contract to make a gift by will
2) joint or mutual wills (may or may not be contractual)
3) contract not to revoke a will
4) contract not to make a will at all
what is a ‘jOINT WILL’
a joint will is a will of TWO OR MORE persons that is EXECUTED ON THE SAME PIECE OF PAPER
single will executed by at least 2 people, executed on same piece of paper, intended to be the will of each signatory when they die
**usually include a clause that will cannot be changed after the death of the first signer
when is a joint will admissible to probate?
a joint will is admissible to probate on the death of each of the joint testators - just as if there were separate pieces of paper
same instrument is submitted to probate for each and every signatory
what is a ‘RECIPROCAL’ or ‘MUTUAL’ will?
reciprocal wills are TWO SEPARATE WILLS containing PROVISIONS that MIRROR ONE ANOTHER
i.e. married couple creates reciprocal wills that leave their respective estates to the surviving spouse, and then to their children)
when are joint wills revocable?? and how??
joint wills or reciprocal wills are revocable by a testator in the same manner as any other will
is a will contractual??
you want to show this through regular CONTRACT PRINCIPLES!
MODERN LAW:
1) need a writing that is separate from a will (an actual contract)
2) offer?
3) acceptance?
4) meeting of the minds?
5) consideration??
**establish that there is a contract
**contract to a will does not need to satisfy the execution formalities required for a valid will - and the contract itself IS not probated
if there is a valid contract (to make will, or not revoke a will… etc.)
the survivor can still raft a new will- and the new will of the survivor will be probated - BUT it will be treated as a BREACH OF CONTRACT
if there is a breach of contract - probate court will not enforce the will that was supposed to be probated; and the contract cannot be used to oppose probate
if a properly executed will is inconsistent with the terms of a contract… what are the remedies?
if a properly executed will is inconsistent with the terms of a contract…
remedy options:
a) action filed for damages in civil court
b) quantum meruit for any consideration provided (reasonable value of services rendered)
c) if damages at law are insufficient - equitable remedy of either (1) CONSTRUCTIVE TRUST oR (2) specific performance
Is the will contractual?
Joint and reciprocal wills are usually executed out of an AGREEMENT between the creators as to the disposition of their property.
Such an agreement can be considered a valid contract to make a will, which is IRREVOCABLE by the survivor after the death of the other contractual party.
Thus, if the survivor amends or revokes their joint or reciprocal will, it may be considered a breach of the contract, and the beneficiaries can enforce the contract in EQUITY via specific performance or imposition of a constructive trust.
how do you establish a will as contractual?
To establish a will as contractual, there must be CLEAR and SATISFACTORY proof of a contract:
(1) in the language of the will,
(2) from extrinsic evidence, or
(3) by clear implication from the surrounding circumstances.
The fact that the parties have executed joint or reciprocal wills with agreed-upon dispositions does not give rise to an inference or presumption that the will was executed pursuant to a contract.
what happens if court finds that the will is contractual??
If a will is found to be contractual, the second, breaching will is probated, but the beneficiaries under the first, contractual will are entitled to specific performance.
A CONSTRUCTIVE TRUST is imposed for them.
is there a general presumption that mutual or reciprocal wills give rise to a contract not to revoke??
nope!!! And either spouse may revoke their will unless it is established that there’s a contract not to revoke
can you use the the alleged contract at probate court to oppose the new will?
nope!!!
can an oral promise to make a bequest in exchange for personal services enforceable??
no!! The testator’s oral promise to make a bequest in exchange for personal services is unenforceable under the Statute of Frauds.
However, the beneficiary may recover in quantum meruit for the reasonable value of services rendered. (and seek remedy for breach of contract)
